Citation Nr: 9834633
Decision Date: 11/23/98 Archive Date: 12/01/98
DOCKET NO. 91-24 115 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
Puerto Rico
THE ISSUES
1. Entitlement to service connection for a cervical spine
disorder.
2. Entitlement to service connection for a left leg
disorder.
3. Entitlement to service connection for a left arm and
shoulder disorder.
4. Entitlement to a permanent and total disability rating
for pension purposes.
REPRESENTATION
Appellant represented by: Gilberto Rodriguez Zayas,
attorney at law
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. P. Havelka, Associate Counsel
INTRODUCTION
The veteran’s active military service extended from November
1953 to November 1957.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a March 1990 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
San Juan, Puerto Rico. That rating decision, in part, denied
service connection for a cervical spine disorder and denied
that the veteran had submitted new and material evidence to
warrant the reopening of a claim for service connection for a
left leg and arm disorder.
The case was previously before the Board in November 1991,
when the Board reopened the veteran’s claim for service
connection for left leg and arm disorders and remanded the
case. The Board now proceeds with its review of the appeal.
The issue of entitlement to a permanent and total disability
rating for pension purposes is the subject of a remand which
follows the Board’s decision.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that the RO committed error in denying
service connection for cervical spine, left leg and left arm
disorders. He argues that he incurred an injury during
active service and that as a result he developed the
disorders currently claimed.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence supports service
connection for arthritis of the left shoulder and left knee.
However, the appellant has not met the initial burden of
submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim for service
connection for a cervical spine disorder is well grounded.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran’s appeal.
2. The veteran’s service medical records have been
destroyed.
3. There are current VA medical diagnoses of arthritis of
the left knee and left shoulder.
4. There is no competent medical evidence of a current
cervical spine disability.
CONCLUSIONS OF LAW
1. Arthritis of the left knee was incurred in active
military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West
1991); 38 C.F.R. § 3.303 (1998).
2. Arthritis of the left shoulder was incurred in active
military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West
1991); 38 C.F.R. § 3.303 (1998).
3. The appellant has not presented a well grounded claim for
service connection for a cervical spine disorder, and
therefore there is no statutory duty to assist the appellant
in developing facts pertinent to this claim. 38 U.S.C.A.
§§ 101(16), 1131, 5107(a) (West 1991); 38 C.F.R. § 3.303(b)
(1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Preliminary Matters
Service connection may be established for a current
disability in several ways including on a "direct" basis. 38
U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303(a),
3.304 (1998). Direct service connection may be established
for a disability resulting from diseases or injuries which
are clearly present in service or for a disease diagnosed
after discharge from service, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(a), (b),
(d) (1998). Establishing direct service connection for a
disability which has not been clearly shown in service
requires the existence of a current disability and a
relationship or connection between that disability and a
disease contracted or an injury sustained during service.
38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.F.R. § 3.303(d)
(1998); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992);
Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).
When the evidence is in relative equipoise as to the merits
of the issue, then the benefit of the doubt in resolving the
issue is to be given to the veteran. 38 U.S.C.A. § 5107(b)
(West 1991); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
VA has a heightened obligation to search for alternate medical
records when service medical records are not available and
must also provide an explanation to the veteran regarding VA’s
inability to obtain his service medical records. Dixon v.
Derwinski, 3 Vet. App. 261 (1992). In the instant case the
National Personnel Records Center (NPRC) has indicated that
the veteran’s service medical records were destroyed by fire
while in the custody of NPRC. A search for alternate service
medical records has been conducted to include a search of
Surgeon General’s records and morning sick reports. However,
no service medical records related to the veteran have been
obtained.
The veteran contends that during active service he was
injured when he fell from a telephone pole. He asserts that
he injured his neck, left leg, and left arm in this fall.
The veteran’s discharge papers reveal that his military
occupational specialty during service was indeed a
“lineman.” Moreover, for some factual issues, such as the
occurrence of an injury, competent lay evidence, such as the
veteran’s statements, may be sufficient to establish that
said injury occurred. Grottveit v. Brown, 5 Vet. App. 91,
92-93 (1993).
The veteran’s service medical records have been destroyed and
are unavailable. The records available are consistent with
the veteran’s claim that he was a lineman during service. As
such, the Board finds that the veteran’s assertions are
sufficient to support that he incurred an injury during
service. Caluza, 7 Vet. App. at 506; Layno, 6 Vet. App. at
469, citing Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992);
Garlejo v. Derwinski, 2 Vet. App. 619, 620 (1992).
II. Left Arm and Leg Disorders
The veteran’s claims are "well grounded" within the meaning
of 38 U.S.C.A. § 5107(a) (West 1991). That is to say that he
has presented claims which are plausible. We are satisfied
that VA has assisted the veteran as much as it can in the
development of his claim. No further assistance to the
veteran is required to comply with the duty to assist
mandated by 38 U.S.C.A. § 5107(a).
As noted above, the veteran was injured in a fall during
active service. The RO has obtained a variety of private and
VA medical treatment records dating from approximately 1971.
Many of these records reveal treatment for complaints of pain
in the veteran’s left shoulder and leg.
In September 1992 a VA examination of the veteran was
conducted. Orthopedic examination revealed painful movement
of the left shoulder, with no weakness or atrophy.
Examination of the lower extremities revealed no
abnormalities. X-ray examination of the cervical spine was
normal. X-ray examination of the left shoulder revealed
early degenerative changes of the acromioclavicular joint.
X-ray examination of the left knee revealed mild degenerative
changes.
In December 1997 the most recent VA examination of the
veteran was conducted. The diagnosis was degenerative joint
disease of the left knee and left shoulder which was
confirmed by x-ray examination.
At this point the Board notes that the evidence shows current
left knee and left shoulder disabilities. Also the veteran’s
statements are competent to establish that he incurred an
injury during service. However, the contemporaneous medical
records showing treatment for pain begin in 1971. Therefore
the biggest obstacle to the veteran is establishing
continuity of symptomatology to link the post-service
symptoms documented in 1971 to the injury during service.
Essentially there is a gap between when the veteran separated
from service in 1957 and the first medical records in 1971.
Regulations require a continuity of symptomatology to link
the post-service symptoms to injury during service when the
fact of chronicity in service is not adequately supported.
38 C.F.R. § 3.303(b) (1998).
A series of letters were submitted on the veteran’s behalf
from a Dr. De Oca, a private physician. Dr. De Oca, states
that he was the veteran’s private physician from shortly
after service until the late 1960s and that he treated the
veteran for left leg and left arm pain. The Board finds that
this evidence is sufficient to establish a continuity of
symptomatology.
In view of the extraordinary circumstances of all of the
veteran’s service medical records being destroyed, the Board
accepts the veteran’s statements of an inservice injury, and
accepts the statements of Dr. De Oca establishing a
continuity of symptomatology. The evidence of the recent VA
medical examination reveals that the veteran has arthritis of
the left knee and left shoulder which is consistent with the
veteran’s assertions. As such, the Board finds that the
evidence supports service connection for arthritis of the
left knee and left shoulder.
III. Cervical Spine Disorder
The facts relating to the veteran’s claim for a cervical
spine disorder differ from those of the above claims. Again,
the veteran contends that he incurred a cervical spine, neck,
disorder as a result of his inservice injury.
The law provides that “a person who submits a claim for
benefits under a law administered by the Secretary shall have
the burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well grounded.” 38 U.S.C.A. § 5107(a) (West 1991).
Establishing a well grounded claim for service connection for
a particular disability requires more than an allegation that
the disability had its onset in service or is
service-connected; it requires evidence relevant to the
requirements for service connection and of sufficient weight
to make the claim plausible and capable of substantiation.
See Franko v. Brown, 4 Vet. App. 502, 505 (1993); Tirpak v.
Derwinski, 2 Vet. App. 609, 610 (1992); Murphy v. Derwinski,
1 Vet. App. 78, 81 (1990).
The three elements of a “well grounded” claim are: (1)
evidence of a current disability as provided by a medical
diagnosis; (2) evidence of incurrence or aggravation of a
disease or injury in service as provided by either lay or
medical evidence, as the situation dictates; and, (3) a
nexus, or link, between the inservice disease or injury and
the current disability as provided by competent medical
evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995),
aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also
38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1998).
Generally, competent medical evidence is required to meet
each of the three elements. However, for the second element
the kind of evidence needed to make a claim well grounded
depends upon the types of issues presented by a claim.
Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For some
factual issues, such as the occurrence of an injury,
competent lay evidence may be sufficient. However, where the
claim involves issues of medical fact, such as medical
causation or medical diagnoses, competent medical evidence is
required. Id. at 93.
In this case, the determinative issues presented by the claim
are (1) whether the veteran was injured during service; (2)
whether he has any current cervical spine disorder; and, if
so, (3) whether this current disability is etiologically
related to active service. The Board concludes that medical
evidence is needed to lend plausible support for the second
and third of the issues presented by this case because they
involve questions of medical fact requiring medical knowledge
or training for their resolution. Caluza v. Brown, 7 Vet.
App. 498, 506 (1995); see also Layno v. Brown, 6 Vet. App.
465, 470 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494-
95 (1992). However, the Board has accepted the veteran’s lay
evidence as sufficient to support the first issue in this
case, especially considering that the veteran’s service
medical records have been lost or destroyed. Caluza, 7 Vet.
App. at 506; Layno, 6 Vet. App. at 469, citing Dixon v.
Derwinski, 3 Vet. App. 261, 263 (1992); Garlejo v. Derwinski,
2 Vet. App. 619, 620 (1992).
The private and VA medical treatment records obtained by the
RO reveal that the veteran has had vague complaints of neck
pain. There are some diagnoses of myositis. The recent
letters from Dr. De Oca reveal that he treated the veteran
for cervical pain but that x-ray examination was essentially
normal.
On the September 1992 VA examination report the examining
physician that on examination of the neck and back there was
“pain to pressure over the vertebral spinous processus.
Painful movement but with full enough planes.” X-ray
examination of the cervical spine revealed no abnormalities.
No diagnosis of any cervical disorder was made.
In December 1997 the most recent VA examination of the
veteran was conducted. The veteran complained of “localized
severe cervical pain.” Examination revealed no pain on
motion of the cervical spine. There was no objective
evidence of muscle spasm or tenderness of the musculature of
the cervical spine. The diagnosis was “negative
musculoskeletal cervical spine examination on today’s
examination.”
The existence of a current disability is the cornerstone of a
claim for VA disability compensation. 38 U.S.C.A. § 1110,
1131 (West 1991); see Degmetich v. Brown, 104 F. 3d 1328
(1997) (holding that Secretary’s and Court’s interpretation
of sections 1110 and 1131 of the statute as requiring the
existence of a present disability for VA compensation
purposes cannot be considered arbitrary and therefore the
decision based on that interpretation must be affirmed).
The evidence of two VA orthopedic examinations has failed to
diagnose the veteran with any cervical spine disorder. With
no current disability the veteran’s claim cannot be well
grounded.
The Board has thoroughly reviewed the claims file. However,
we find no evidence of a plausible claim. Since the veteran
has not met his burden of submitting evidence sufficient to
justify a belief by a fair and impartial individual that the
claim is well grounded, it must be denied. See Boeck v.
Brown, 6 Vet. App. 14, 17 (1993) (if a claim is not well-
grounded, the Board does not have jurisdiction to adjudicate
it).
Although the RO did not specifically state that it denied the
veteran’s claims for service connection on the basis that
they were not well grounded, the Board concludes that this
error was not prejudicial to the veteran’s claims. See
Edenfield v. Brown, 8 Vet. App. 384, 390 (1995).
Where a claim is not well grounded, VA does not have a
statutory duty to assist a claimant in developing facts
pertinent to the claim, but VA may be obligated under 38
U.S.C.A. § 5103(a) to advise a claimant of evidence needed to
complete his application. This obligation depends on the
particular facts of the case and the extent to which the
Secretary has advised the claimant of the evidence necessary
to be submitted with a VA benefits claim. Robinette v.
Brown, 8 Vet. App. 69, 78 (1995). Here, unlike the situation
in Robinette, the veteran has not put the VA on notice of the
existence of any specific, particular piece of evidence that,
if submitted, could make his claims well grounded. See also
Epps v. Brown, 9 Vet. App. 341 (1996). Accordingly, the
Board concludes that VA did not fail to meet its obligations
under 38 U.S.C.A. § 5103(a) (West 1991).
ORDER
Service connection for arthritis of the left knee is granted.
Service connection for arthritis of the left shoulder is
granted.
Because it is not well-grounded, the veteran’s claim for
service connection for a cervical spine disorder is denied
REMAND
This issue involving entitlement to a permanent and total
disability rating for pension purposes requires remand.
The veteran’s assertions, and his substantive appeal, with
respect to the nonservice-connected pension issue have been
vague at best. The Board notes that:
The Substantive Appeal should set out specific
arguments relating to errors of fact or law made
by the agency of original jurisdiction in reaching
the determination, or determinations, being
appealed. To the extent feasible, the argument
should be related to specific items in the
Statement of the Case and any prior Supplemental
Statements of the Case. The Board will construe
such arguments in a liberal manner for purposes of
determining whether they raise issues on appeal,
but the Board may dismiss any appeal which fails
to allege specific error of fact or law in the
determination, or determinations, being appealed.
38 C.F.R. § 20.202 (1998)(emphasis added).
The Board is unclear if the veteran has intended to appeal
the nonservice-connected pension issue, and if he desires to
continue this appeal in view of the grants of service
connection made above. Therefore, the veteran should be
contacted to specify his desires.
Moreover, it appears that all of the veteran’s disabilities
have not been rated for pension purposes. A January 1990
letter from Doctor Ramos, a private physician, reveals that
the veteran is diagnosed with heart disease. However, recent
VA examinations do not confirm this diagnosis. If the
veteran desires to continue the appeal with respect to
pension, then another VA examination should be conducted to
resolve this ambiguity.
The United States Court of Veterans Appeals (Court) has held
that when the medical evidence is inadequate, VA must
supplement the record by seeking an advisory opinion or
ordering another medical examination. Colvin v. Derwinski, 1
Vet. App. 171 (1991) and Halstead v. Derwinski, 3 Vet. App.
213 (1992).
In light of the foregoing, the case is REMANDED to the RO for
the following development:
1. The RO should contact the veteran and
ask him if he desires to continue the
appeal with respect to the issue of
entitlement to nonservice-connected
pension. If so the veteran should be
informed of the requirements of 38 C.F.R.
§ 20.202 to provide specific arguments
relating to errors of fact or law made by
the agency of original jurisdiction in
reaching the determination, or
determinations, being appealed. If the
veteran wishes to continue an appeal of
these disability ratings, those issues
should be returned to the Board;
otherwise the RO should take action
deemed appropriate.
2. If, and only if, the veteran
continues the appeal with respect to the
pension issue, then the veteran should be
accorded an examination by the
appropriate specialist to ascertain if he
has any cardiovascular disorders and to
provide the medical evidence necessary to
rate any such disorders. The report of
examination should include a detailed
account of all manifestations of any
cardiovascular disorders found to be
present. All necessary tests should be
conducted and the examiner should review
the results of any testing prior to
completion of the report. The physician
should provide complete rationale for all
conclusions reached.
Once the foregoing has been accomplished and if the veteran
remains dissatisfied with the outcome of the adjudication of
the claim, both the veteran and his representative should be
furnished a supplemental statement of the case covering all
the pertinent evidence, law and regulatory criteria. They
should be afforded a reasonable period of time in which to
respond.
Thereafter, the case should be returned to the Board for
further appellate consideration. The veteran needs to take
no action until so informed. The purpose of this REMAND is
assist the veteran and to obtain clarifying information. The
Board intimates no opinion as to the ultimate outcome of this
case.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
BETTINA S. CALLAWAY
Member, Board of Veterans’ Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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